Gearbox suing 3D Realms over Duke Nukem: Mass Destruction RPG

Series creator no longer has rights to license Duke Nukem IP, Gearbox says.

While the long, strange saga of Duke Nukem Forever finally concluded with 2011's heavily panned release, the aftershocks of the game's development continue to this day. Case in point, Gearbox has filed a federal lawsuit to prevent Duke Nukem creators 3D Realms and Apogee Software, along with developer Interceptor Entertainment, from using the Duke Nukem IP as planned in a new game.

The three defendants in the case started teasingDuke Nukem: Mass Destruction as "an isometric action role-playing game for PC and PlayStation 4" earlier this month, promising more information to come. But in a federal lawsuit filed in the Northern Texas district, Gearbox notes that it purchased the Duke Nukem IP in 2010 when it took over work on Forever. Consequently, the suit alleges, 3D Realms no longer controls the rights necessary to allow Interceptor to create a new game with the Duke Nukem name and characters.

"Apparently, after selling its Duke Nukem IP rights to Gearbox in 2010, [3D Realms] sought to privately convince others that the sale never happened," Gearbox writes in the suit. "By attempting to license the unlicensable, assign the unassignable, and effectively re-sell the exclusive rights that Gearbox already purchased in 2010, [3D Realms] breached the terms of its [asset purchase agreement] with Gearbox, as well as Gearbox’s exclusive, federally-protected intellectual property rights."

Interestingly, 3D Realms' George Broussard and Scott Miller apparently replied to a cease-and-desist order from Gearbox earlier this month. The declaration 3D Realms sent in response seems to acknowledge that 3D Realms signed over the rights to the Duke Nukem franchise in February 2010 and that Duke Nukem: Mass Destruction is therefore "a material infringement of Gearbox's rights."

Aside from laying out the issues of IP ownership, Gearbox also goes out of its way in the lawsuit to deride 3D Realms' stewardship of Duke Nukem Forever during that game's decade-plus development.

"It is worth remembering: Prior to Gearbox’s involvement, 3DR languished for over 12 unsuccessful years trying to get the Duke Nukem Forever ('DNF') videogame off the ground and was famously incapable of achieving its goal," the lawsuit reads (emphasis in original). "Desperate for help—and on the verge of even further ruin, now that 3DR could no longer fund either development or litigation—3DR effectively asked its friends at Gearbox for a life preserver... to complete the technological jigsaw puzzle of a videogame that 3DR had been calling DNF."

In the suit, Gearbox goes on to call the work product it received from 3D Realms "sorely deficient" and containing "a mountain of problems." Gearbox also casts itself in the lawsuit as a "rescuer" that managed to salvage the unsalvageable work into a shipped product for "those DNF fans who had patiently waited."

Gearbox is seeking a permanent injunction to prevent the use of its Duke Nukem IP, as well as unspecified statutory, compensatory, and exemplary damages. Ars attempted to contact Interceptor but did not hear back before the time of publication.

Kyle Orland / Kyle is the Senior Gaming Editor at Ars Technica, specializing in video game hardware and software. He has journalism and computer science degrees from University of Maryland. He is based in Pittsburgh, PA.